New York State Court of Claims

New York State Court of Claims
ELY v. THE STATE OF NEW YORK, # 2019-029-072, Claim No. 126282, Motion No. M-94433


The claim seeks damages for injuries from fall resulting from cane collapsing at Taconic C.F. The court granted, in part, claimant's motion to sanction defendant for spoliation based on loss of the broken cane, to the extent of drawing an adverse inference that the missing cane would not support defendant's position at trial. The motion was otherwise denied.

Case information

UID: 2019-029-072
Claimant(s): KAREN T. ELY
Claimant short name: ELY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126282
Motion number(s): M-94433
Cross-motion number(s):
By: Aryeh B. Schneider, Esq.
By: Joseph E. Scolavino, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 16, 2019
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The claim alleges that in 2013 defendant was negligent in failing to replace the 20-year-old adjustable metal cane claimant used at Taconic Correctional Facility ("Taconic"), resulting in the cane collapsing and claimant sustaining serious physical injuries. A trial on liability is scheduled for October 22 and 23, 2019. Claimant moves to sanction defendant for spoliation based on defendant's loss of the broken cane. The motion requests issuance of an order:

"a) Precluding the Defendant from claiming that the alleged unsafe and inadequate cane was safe and adequate at the time of Claimant's accident;

b) Precluding the Defendant from claiming that the alleged unsafe inadequate cane was not the cause of the accident;

c) Securing an adverse inference that the jury may conclude that the disposed evidence would have been adverse to the defendant's position at trial;(1) and

d) Such other, further and different relief as the Court deems just."

The parties do not dispute that the cane is missing. The issue is how severe a sanction is warranted under the circumstances. "The imposition of sanctions for the spoliation of evidence involves the exercise of broad judicial discretion" (Barnes v State of New York, UID No. 2017-038-556 [Ct Cl, DeBow, J., Aug. 31, 2017] [spoliation motion granted in part by drawing advance inference from erasing of video where video might have corroborated claimant's testimony about what transpired between him and other inmate who allegedly threatened claimant's life]; see Ortega v City of New York, 9 NY3d 69, 76 [2007]). "It matters not whether the spoliation was intentional or negligent; rather, the nature of the sanction should relate to the degree to which the moving party has been prejudiced by the loss of the evidence" (Barnes, UID No. 2017-038-556; see Jennings v Orange Reg'l Med. Ctr., 102 AD3d 654, 655-656 [2d Dept 2013]; Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2d Dept 2007]). "Less severe sanctions for spoliation of evidence are appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her defense or case" (Jennings at 656; see Barone v City of New York, 52 AD3d 630, 631 [2d Dept 2008]; Iannucci v Rose, 8 AD3d 437, 438 [2d Dept 2004]).

Claimant argues that defendant was obligated to preserve the evidence and took no precautions to do so, and she will be prejudiced by defendant's loss of the cane because: 1) she will not be able to introduce into evidence the item that caused her accident; 2) her expert will not be able to examine the cane and comment on whether it was defective, defendant had notice of the defect, and the defect caused the accident; and 3) "[a] reasonable jury could conclude that claimant failed to satisfactorily meet [her] burden without a key piece of evidence" (Schneider Aff. at 18).(2) Defendant responds that the motion should be denied or less severe sanctions imposed because the missing cane does not deprive claimant of the ability to establish her case (see Scolavino Aff.).(3) The court agrees that claimant has not been deprived of the ability to prove her claim, but nonetheless finds it appropriate to impose the less severe sanction of an adverse inference.

Claimant's argument treats the claim as if it alleged a design or other dangerous defect caused the cane to collapse. Instead, the claim alleges simple negligence based on defendant's failure to give claimant a new cane to replace her old one, in spite of repeated requests by claimant and her doctor at Taconic. The relevant evidence is described in the motion as, inter alia: accident and injury reports; medical records; documented requests and orders for a new cane; sworn deposition testimony from several witnesses; and photographs of the cane taken shortly after the accident.(4)

The documents submitted in support of the motion show that claimant first received the adjustable metal cane in 1991 while she was an inmate with the Department of Correctional Services.(5) The cane consisted on two metal rods with vertical holes. Claimant adjusted the height by way of a button and tension spring, which she needed to do periodically because of her condition. Over time, the cane became loose and unstable. Months before the accident, claimant told the Taconic Medical Clinic and her primary care physician, Dr. O'Dell, about the cane's condition and asked for a new cane. In March 2012, the medical clinic noted that the adjustment seal on the cane was broken and the rubber tip was the wrong size. Dr. O'Dell ordered claimant a new cane as early as April 2012, and repeated the order in August 2012 and again in September 2012. Claimant inquired about the new cane often. She did not receive a new cane and on July 15, 2013, she fell when the cane collapsed.

Claimant has not submitted evidence showing or even suggesting that the prison personnel responsible for the cane willfully misplaced or disposed of it. To the contrary, they took immediate steps to secure the evidence. The submitted documents show that Correction Officer ("C.O.") Aundray White was assigned by Sergeant Paris Richmond to conduct an accident-injury investigation. C.O. White took contemporaneous photographs of the broken cane, placed the cane pieces in a contraband locker, and documented his actions. It is unclear when or why the cane pieces were removed from the locker.

The court is also not convinced that the actual pieces of the broken cane would be material to claimant meeting her burden of proof at trial (see Delmur, Inc. v School Constr. Auth., 2019 NY App Div LEXIS 5794 [2d Dept 2019] [stating rule that relevance is presumed where evidence intentionally destroyed, but moving party has burden to show relevance where evidence missing due to negligence]). The motion and supporting documents demonstrate that claimant has evidence showing the condition of the cane leading up to the fall, months of requests and physician orders for a new cane, defendant's failure to provide the new cane, the circumstances of the accident, and the condition of the cane immediately following the accident.

Nevertheless, having the actual cane in evidence could bolster or corroborate claimant's testimony. Defendant was obligated to secure the evidence and took initial steps to do so, then failed to take steps necessary to maintain the security of the evidence. A sanction is warranted, and the court finds an adverse inference to be appropriate under the circumstances.

Accordingly, claimant's motion to sanction defendant for spoliation is granted in part, to the extent of drawing an adverse inference that the missing cane would not support defendant's position at trial. The motion is otherwise denied.

September 16, 2019

White Plains, New York


Judge of the Court of Claims

Papers considered:

Notice of Motion, Affirmation in Support and Exhibits

Affirmation in Opposition and Memorandum of Law

1. Trials in the Court of Claims are bench trials.

2. "Schneider Aff." refers to the Affirmation of claimant's attorney Aryeh B. Schneider.

3. "Scolavino Aff." refers to the Affirmation of Assistant Attorney General Joseph E. Scolavino.

4. Among the exhibits attached to the Schneider Aff. are copies of : photographs of the broken cane; transcripts of depositions of claimant, Dr. Crossley O'Dell, Taconic Medical Director, Dr. Denise Sepe, Sgt. Paris Richmond, and Fire and Safety Officer Aundray White; Ambulatory Health Record Progress Notes; evidence preservation demand letters; and a photograph of the contraband locker log book.

5. The Department of Correctional Services and the Division of Parole were merged in 2011 and became known as the New York State Department of Corrections and Community Services.